Part One: Why Did We Choose This?

Hiring a family law attorney often comes at a time when life already feels uncertain. Whether you’re navigating a divorce, working through a custody dispute, or trying to modify an existing parenting arrangement, you’re facing important decisions that can affect your family and financial future.

Attorney fees shouldn’t add another layer of uncertainty. That’s one of the reasons Davis & Associates chose a different approach to family law billing. In this first installment of our series, we’ll explain why we moved away from traditional hourly billing and how our fixed monthly rate model changes the attorney-client relationship.

Fixed Rate Family Law

Written by Brendan Davis

Traditional family law firms bill hourly. They charge clients for every phone call, email, text, minute or hour spent drafting, attending court, etc. It can be incredibly variable, hard to predict, and expensive. We don’t do that; we bill differently. We offer fixed monthly rates for out clients. This typically means lower payments, a set, non-variable monthly rate, and a much better idea of how much a case will cost.

It’s not that hourly billing is wrong – there are pros and cons to every firm billing structure. We just feel, for us and our clients, the pros of our model outweigh the cons of hourly. Our model rewards efficiency, encourages attorney-client communication, and adds a degree of predictability for clients not possible with hourly billing. This works together with our goal of making family law representation more affordable.

Here is how and why:

Cost and Cost Predictability

People are typically not calling family law firms because their lives are amazing. They are looking at a pending divorce or are already in one. They are fighting over custody of children or possibly not seeing them at all. They may be going from one household to two. They are worrying about their children, bills, finances and future. Then they hire an attorney and receive another question.

How much does a divorce cost? Under hourly billing, the answer is it depends. It depends on:

• How many emails are exchanged, not just between the client and firm, but also opposing counsel, party, court, Guardian ad Litem, etc.
• How many phone calls occur between all these parties;
• How many text messages are happening;
• How much discovery is required or necessary;
• How many drafts and revisions are needed on said discovery, or other motions, petitions, proposals, etc.
• How reasonable is the other side or his/her attorney
• How many court dates, pretrials, hearings, etc. are needed;
• Essentially, how much time does a law firm (attorneys and support staff) spend.

We want to remove this uncertainty. By setting a fixed monthly fee schedule, our clients know exactly what the monthly invoice is going to be. The only variable is how long the case with take. If we can wrap it up in four months, it is $X. If takes eight months, it is $Y. And we take all steps reasonably necessary to resolve things as soon as practicable.

Encouraging Attorney-Client Communication.

This is an integral part of the attorney-client relationship. The attorney and client need to be able to effectively communicate and relay ideas and updates. Hourly billing can discourage it. When clients know each phone call (even a voicemail), text or email cost money, they may start asking if it is necessary to ask? Or is it necessary to go into so much detail? Should they call? Should they add every detail about a situation? When is the right time to do this?

We don’t want our clients worrying about this. If they need to reach out and ask something, they can. They do not have to worry about a matching bill.

No Billable Hour Requirements

This is the part most consumers do not realize. Most hourly law firms have billable hour requirements or incentives for their attorneys. That means that each attorney has to bill a certain amount to stay employed or earn bonuses. That doesn’t mean these firms are not honest, but some clients can be on the losing side of it – an attorney’s hourly requirement might not line up with what is actually needed on a case.

The example I always give comes from years ago, when I was training a new attorney hire. He had four years of family law experience, so I assumed he could handle simple motions. A client recently retained us for a custody modification. When he was divorced a few years prior, he was in the military stationed in a different state. His parenting time share schedule reflected that. He could only exercise parenting time on holidays. A few years later, in the present day, he moved back to the same town as his child and ex, only five minutes down the street.

I went over this with the new attorney and asked him to draft a motion to modify the schedule for the client. The attorney asked when he should have it done by. I was a bit taken aback and said, well in an hour or two. The associate balked and said this was something he typically “liked to sink his teeth into” and would need at least a few days. Here’s the thing, a short concise motion asking for more parenting time does the same thing as a lengthy, verbose motion citing all kinds of case law. In that county and courtroom, either motion gets a court date and mediation. So why would you want to spend all this unnecessary time doing something that isn’t needed? It is because how he had been trained and experience in his prior years at an hourly firm. Its just a different mindset.

We do not have these incentives. Our attorneys are reviewed based on their response time, speed to effectively resolve client issues, and handling these matters successfully.

Mistakes Should Not Generate Revenue

Another underappreciated scenario. Hourly attorney A sends his client a draft settlement with several mistakes. Birthdays, addresses, children’s names are all wrong. The client reviews it, points out the errors, and sends it back. Then that attorney spends time correcting the document. The client could be billed for both the original drafting and the revisions. Good hourly firms may exercise billing discretion in situations like this, but what if there were a few mistakes and the client wanted more extensive revisions?

Complex motions and settlement documents rarely emerge perfect on a first draft. Even if they do, the other side might want revisions. Discovery requests may go back and forth several times between the attorney and client then between opposing counsel and their client. The same is true for proposed settlements, orders, appointments of independent parties like a realtor to appraise a home or a Guardian ad Litem.

With hourly billing, each round of corrections, fine tuning, and counters increase the bill. With fixed monthly rates, this is not necessarily the case. We prefer that.

Complexity Should be Determined by the Facts of the Case, Not Billing Structure

There are a multitude of tools and processes available in litigation. Some cases might require a Guardian ad Litem to be appointed. Sometimes in lieu of a Guardian, children can be interviewed on camera by a judge. Other times, custodial interrogatories or requests to admit or production might be the best option, or some combination therein. The same applies for finances. Do we need to subpoena records? How far back do we need to request financial statements? These are all parts of a case strategy that the attorney and client discuss and commit to.

One of our biggest frustrations is seeing relatively simple cases become unnecessarily complex. Another personal example- I had a husband hire me for a divorce. He was only married to his wife for 18 months; they did not have children; and he made ~$120,000.00 compared to her $105,000.00. The only joint asset was a bank account with a few thousand in it. He had also spoken with her and thought they were on the same page with the divorce. So I drafted a proposal essentially saying each person could keep their own property and debt in their name (like their 401ks) and the wife could keep the money in the joint account.

Wife proceeded to hire an attorney who basically laughed at the proposal, seemed convinced our client was laundering money, and sent extensive discovery requests wanting information well before the parties were even married. Well, our client was locked in with his fixed monthly rate, but his wife was not. The more extensive and drawn out the case got, the more her attorneys bills blew up. After a few months, we eventually settled the case with the same terms we originally drafted and sent over in the beginning. The biggest difference is that wife’s attorney cost over four times more than we did. It felt like her attorney didn’t want to let her client get divorced.

Under hourly billing, more discovery creates more billable work, more demand letters equal more time spent, every added layer of complexity is a way for the attorney to charge more. Again, that doesn’t mean every attorney is deliberately doing this just to pad their numbers, but economically, the firm earns more when the firm bills more.

Our model provides our attorneys a different incentive. If the case doesn’t need extensive discovery, then we don’t need to do it. If we are close to a settlement, let’s just hammer it out instead of blowing it apart with motions and demands. If a problem can be resolved with a phone call instead of a motion, we do that.

Efficiency and Technology

I worked a case where I took over from an hourly attorney. We were representing a father in a custody dispute. Whenever the prior attorney needed to inform the client of a court date, he would draft a letter in Microsoft Word, print it out, sign it, scan it back into his computer, and email it to the client saying essentially, “please see attached correspondence.” His time in doing this was logged and billed for in his monthly invoices. When I needed to update the client, I would shoot him a text with the same information.

This is maybe an extreme example, but the principle is relevant. Experience, knowledge, and technology work together in ways that save time. But saving time isn’t necessarily the goal of hourly firms. Our attorneys and staff want to be as efficient and straight forward as possible. We leverage calls, texting, emails to communicate quickly. We leverage Zoom or remote court dates as much as possible. Not only does this save everyone time, but it’s often more convenient for clients who have work, or kids, or just other responsibilities and do not have the time to drive to a downtown courthouse.

Our model incentivizes us to create templates, develop systems, and use technology that makes us more efficient. As another aside – many hourly firms allow for minimum amounts to be charged. For example, court is a minimum of one hour. This maybe made sense when that involved driving to the courthouse, parking, checking in, waiting to be called, and ultimately appearing before the judge, even if briefly. However, when COVID hit and Zoom court became more common, we could be sitting at our computer working on other matters until the judge called out case. We loved it! It made the days so much more productive, and we could clock out early. However, I actually saw some attorneys in a community forum, asking if they could still charge a minimum of one hour for that type of court appearance. It was fundamental to their model.

Hourly Billing is a Second Job

The shorter amount of time something takes, and the more an attorney multitasks, the bigger headache hourly billing becomes. Sure, it can be straight forward to start the clock timer and sit down and draft a long motion or go over financial documents. But what about text conversations? What about waiting to be called to court on Client A but reviewing emails from Client B?

Consider a routing morning. I log into Zoom court for Client A at 9:00am. The judge is late, so I am waiting. While waiting Client B texts be about a recent incident where his ex’s new boyfriend got aggressive at a custody exchange. I pull client B’s file to see if the last orders addressed significant others and send a response and next steps. Client B has a few questions about that, but then I got called into Client A’s court. After ten minutes in court, I follow up with Client B. How should I bill that? Does Client A get billed regardless as I was waiting to be called? Does Client B cover the portion of time I spend reviewing and texting? Now I must recreate the morning and log it properly. What If I also glanced at an email from Client C? It can be done, but it’s a headache. I’d rather just do the work and move on to Client D’s needs.

There is the further problem that time spent texting a response is not the time spent proving the service. Suppose I get asked, “Do I have to return the kids at 5pm or 6pm tomorrow?” the answer can be as short as, “5pm.” So what gets billed? Not just that response. We also need to include the time spent reading it, pulling the file, looking for the right order, and answering it. Does the firm billing in minimum increments? If so, that’s at least 1/10 of an hour. If my hourly rate is $400.00 that text just cost the client $40.00 at least.

Not only does this add up quickly for a client, but in my opinion, it stinks. It’s a constant burden in the back of my mind, and it adds another level of complexity to each and every transaction. Personally, and as a firm, we’d much rather focus on the needs of the client and case, and not have to worry about what hourly rate is being applied.